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Mortgage-Legal Glossary

325D or 325(d)- a shorthand reference to “CPLR 325(d),” the New York statute which allows a court to transfer a matter to a lower court. Pursuant to CPLR 325(d), the Supreme Court may transfer claims to the Civil Court which appear to have a value of no more than $25,000, but which were brought in Supreme Court claiming a greater amount. Once transferred, however, a potential verdict is not limited to the $25,000 maximum of the Civil Court.

Abstract- A succinct summary; (e.g. an abstract of judgment; an abstract of title, an abstract plant.)

Abstract of Judgment- Summary of a court judgment creating a lien against a property when filed with the county recorder.

Abstract of Title – The condensed history of a title to a particular parcel of real estate, consisting of a summary of the original grant and all subsequent conveyances and encumbrances affecting the property and a certification by the abstractor that the history is complete and accurate.

Abstract Plant- A collection of information and documents relating to title of a particular property. Also known as “title plant”.

Acceleration Clause- The clause in a mortgage or deed of trust that can be enforced to make the entire debt due immediately if the borrower defaults on an installment payment or other covenant.

Acceptance- The written approval made by the seller from a buyer’s offer.

Accrued- On a closing statement, items of expense that are incurred but not yet payable, such as interest on a mortgage loan or taxes on real property.

Action- a civil judicial proceeding whereby one party prosecutes another for a wrong done or for protection of a right or prevention of a wrong; requires service of process on adversary party or potentially adversary party

Addendum- Any addition or change to a contract.

Adequate protection: Payment to a secured creditor to protect the value of the creditor’s lien during the bankruptcy proceeding from loss due to depreciation or non payment of a senior lien.
Adjustable Rate Mortgage (Arm)- A loan with an interest rate that fluctuates based on a specified financial index, such as Treasury securities, or the 11th District Cost of Funds, etc.

Adjournment- a temporary postponement of the proceedings of a case until a specified future time

Adjudicate- to hear or try and determine judicially

Adversary- an opponent. The defendant is the plaintiff’s adversary

Adult- a person over 18 years old

Affiant- one who swears to an affidavit; deponent

Affidavit- a sworn or affirmed statement made in writing and signed; if sworn, it is notarized

Affirmed- upheld, agreed with (e.g.,The Appellate Court affirmed the judgment of the Civil Court)

Agent- A licensed representative of the state to conduct real estate transactions.

Agreement of Sale- Also known as an agreement to convey. A signed, written contract entered into between the seller (vendor) and buyer (vendee) for sale of real property (land) under certain specific terms and conditions.

Alienation- The transfer of property from one person to another. Alienation may be voluntary, such as by gift or sale, or involuntary, as through eminent domain or adverse possession.

Alienation Clause- A term of a mortgage which requires that the borrower pay in full the principal and interest due upon the sale of the property. ( See Acceleration or Due-on-Sale Clause)

All-Inclusive Deed of Trust- A form of deed of trust that, in addition to any other amounts actually financed, includes the amounts of any prior deeds of trust. Sometimes referred to as a wrap-around or over-riding trust deed.

Allegation- the assertion, declaration, or statement of a party to an action, made in a pleading, setting out what the party expects to prove

Allege- to assert a fact in a pleading

Allocution- a formal address by a trial judge to the parties on the record to find out if they understand the terms of a stipulation of settlement

Amortization- The repayment of a debt in installments.

Amend- to change

Answer- a paper filed in court and sent to the plaintiff by the defendant, admitting or denying the statements in the plaintiff’s complaint, and briefly stating why the plaintiff’s claims are incorrect and why the defendant is not responsible for the plaintiff’s injury or loss

Appeal- in an appeal, either plaintiff or defendant (or sometimes both) asks a higher reviewing court to consider a lower court judge’s decision. One may only appeal a judge’s ruling, not an arbitrator’s ruling.

Appeal as of right- the ability to bring an appeal of an order or a judgment without seeking permission of the court

Appear/ Appearance- the participation in the proceedings by a party summoned in an action, either in person or through an attorney

Appellant- the party who takes an appeal to a higher court

Appellee- the party against whom an appeal is taken

Appraisal- A valuation or an estimation of value of property by disinterested persons of suitable qualifications; the process of ascertaining a value of an asset or liability that involves expert opinion rather than explicit market transactions.

Appraise- To fix or set a price or value upon.

Appreciation- The difference between the increased value of the property and the original value.

Arbitration- a process in which an impartial attorney trained in arbitration or a retired judge decides a dispute instead of the court; if the parties consent to arbitration, the arbitrator’s decision is final; otherwise, a dissatisfied party may request a trial before the court

Arbitrator- a disinterested person trained in arbitration who hears evidence concerning the dispute and makes an award based on the evidence

Argument- a reason given in proof or rebuttal

Arrears- Generally, being overdue in an installment payment.

Assessor- A municipality employee who estimates the value of properties for the purpose of taxes.

Assets Every form of property that the debtor owns. They include such intangible things as business goodwill; the right to sue someone; or stock options. The debtor must disclose all of his assets in the bankruptcy schedules; exemptions remove the exempt assets from property of the estate.

Assignee- The person to whom a transfer of interest is made. Hence an assignee of an Agreement of Purchase and Sale may buy the property and enforce the contract in the same fashion as the original party.

Assignment- The method by which a right or contract is transferred from one person (the assignor) to another (the assignee).

Assignor- The person who makes an assignment to another person.

Assumable Mortgage- A mortgage that can be taken over (“assumed”) by the buyer when a home is sold. If interest rates have risen, an assumable mortgage at a low rate may prove a selling point for the property.

Attachment- the taking of property into legal custody by an enforcement officer

Automatic stay- The injunction issued automatically upon the filing of a bankruptcy case which prohibits collection actions against the debtor, the debtor’s property or the property of the estate. See Relief from Stay on terminating the injunction.

Avoidance- The Bankruptcy Code permits the debtor to eliminate (avoid) some kinds of liens that interfere with (or impair) an exemption claimed in the bankruptcy. Most judgment liens that have attached to the debtor’s home can be avoided if the total of the liens (mortgages, judgment liens and statutory liens) is greater than the value of the property in which the exemption is claimed. This is sometimes called “lien stripping.” For more, see Lien Avoidance and Lien Stripping.

Avoidance powers- Rights given to the bankruptcy trustee (or the debtor in possession in a Chapter 11) to recover certain transfers of property such as preferences or fraudulent transfers or to void liens created before the commencement of a bankruptcy case. More on preferences.

Balloon Payment- A final payment of a mortgage loan that is considerably larger than the required periodic payments because the loan amount was not fully amortized.

Bankruptcy- An action filed in a federal bankruptcy court that allows a creditor to reorganize or discharge credit obligations due to insolvency. A property owner may halt foreclosure action by filing bankruptcy. Bankruptcies remain on a credit record for seven years and can severely limit a person’s ability to borrow.

* Chapter 7 – “Debtor Wipeout” The court oversees the liquidation of the debtors’ non-exempt assets, distributing the cash proceeds proportionally amongst their creditors.

* Chapter 11 – This is a business reorganization proceeding.

* Chapter 12: A simplified reorganization plan for family farmers whose debts fall within certain limits.

* Chapter 13 – “Debtor Workout” This is the almost-automatic choice of most trustors seeking to use a bankruptcy filing to delay the in- evitable trustee’s sale as long as they can. The purpose of this proceeding is to give a “wage earner” time for rehabilitation . . . a temporary respite free from the collection efforts of creditors.

* Confirmed – A plan of reorganization in Chapter 11, 12 or 13 approved by the court and binding on the parties is said to be confirmed.

Bankruptcy Code- Title 11 of the United States Code governs bankruptcy proceedings. Bankruptcy is a matter of federal law and is, with the exception of exemptions, the same in every state. When federal bankruptcy law conflicts with state law, federal law controls. Bankruptcy Code incorporating changes effective 10/17/05.

Bankruptcy estate- The estate is all of the legal and equitable interests of the debtor as of the commencement of the case. From the estate, an individual debtor can claim certain property exempt; the balance of the estate is liquidated in a Chapter 7 to pay the administrative costs of the proceeding and the claims of creditors according to their priority. More on the estate

Beneficiary- A person entitled to receive money or assets from a trust or an estate. A lender is a beneficiary with a deed of trust or a note as a security for a loan.

Betterment-Any improvement of real estate that results in a rise in market value of that property.

Bid- An offer by an intending purchaser to pay a designated price for property which is about to be sold at auction.

Bill of Sale- Written document by which title to personal property (goods or chattels) is transferred from one party to another.

Bill of Particulars- factual detail submitted by a claimant after a request by the adverse party which details, clarifies or explains further the charges and/or facts alleged in a pleading

Blanket Deed of Trust- A deed of trust secured by more than one lot or parcel of land.

Borrower- He to whom a thing or money is lent at his request.

BPO- Brokers Price Opinion.

Breach- The breaking or violating of a law, a right, obligation, engagement, or duty, either by commission or omission.

Brief- a written or printed document prepared by the lawyers on each side of a dispute and submitted to the court in support of their arguments – a brief includes the points of law which the lawyer wished to establish, the arguments the lawyer uses, and the legal authorities on which the lawyer rests his/her conclusions

Broker- A agent authorized by the state to deal in real estate.

Brokerage- The bringing together of two or more parties interested in making a real estate transaction.

Buy-Down mortgage- A financing technique used to reduce the monthly payments for the first few years of a loan. Funds in the form of discount points are given to the lender by the builder or seller to buy down or lower the effective interest rate paid by the buyer, thus reducing the monthly payments for a set time.

Buyers Market- A market condition where there are fewer buyers than there are sellers. Usually indicated when a property is on the market for more than 90 days and interest rates are very high. (12% or higher)

Calendar- a schedule of matters to be heard in court

Calendar Call- the calling of matters requiring parties, or their attorneys, to appear and be heard. There is usually one at the beginning of each court day. Other calendar calls take place throughout the day.

Capital Gain- A profit earned from the sale of an asset.

Caption- in a pleading, deposition or other paper connected with a case in court, it is the heading or introductory clause which shows the names of the parties, name of the court, number of the case on the docket or calendar, etc.

Cash Flow- The surplus left over out of the rents after paying out all operating expenses and mortgage payments.

Cause of Action- grounds on which a legal action may be brought (e.g., property damage, personal injury, goods sold and delivered, work labor and services)

Certificate of Sale- A certificate issued at a judicial sale that entitles the buyer to receive a deed after confirmation of court for the purchase of the property.

Certified Copy- a document which contains a seal that establishes the document as genuine, as a true copy, so that it may be used as evidence at a trial or a hearing. A document may be certified by an official record keeper, a clerk of the court, or any other authorized person, for example, an attorney.

Certified Statement- a statement which has been sworn to before a Notary Public or Commissioner of Deeds as a true statement

Chain of Title- A succession of conveyances that comprises the title record history to a specific parcel of real property.

Change of Venue- the removal of a suit begun in one county to another county for trial, though the term may also apply to the removal of a suit from one court to another court of the same county

Charged Off- This is an accounting term that means the creditor does not expect to collect on the debt. It relates to the creditor’s taxes. It starts time periods under the Fair Credit Reporting Act. It does not mean that the debt is no longer legally enforceable.

Charge to Jury- an address delivered by the court to the jury at the close of the trial instructing the jury as to what principles of law they are to apply in reaching a decision

Chattel- Personal property, such as household items. Article of personal property.

Chattel Mortgage- A mortgage which is secured by personal property.

Civil Contempt- a failure to comply with a court order. Civil contempt is committed when a person violates an order of the court which specifically requires that the person do or refrain from doing an act. Punishment for civil contempt may be a fine or imprisonment, and the goal of the punishment is to have the person comply with the original order of the court.

Clerk’s Return On Appeal- a form filled out by the Civil Court Appeals Clerk certifying that the record on appeal is complete and ready to be transmitted to the Appellate Term

Closing Costs- Expenses supplementary to the sale of real estate, which includes loan, title and appraisal fees.

Closing Date- The date agreed upon which the buyer takes over the property.

Cloud on Title- Any outstanding claim that contradicts the title record, if valid, would impair the owners title.

Code- A collection of laws relating to a certain topic, such as real property, patents, etc.

Co-signer- A co-signer signs a promissory note and takes responsibility for the debt.

Collateral- Real estate or personal property which is pledged as security for a debt. The property which is subject to a lien. A creditor with rights in collateral is a secured creditor and has additional protections in the Bankruptcy Code for the claim secured by collateral. The measure of the secured claim is the value of the collateral available to secure the claim: it is possible to have a lien on property that is subject to a senior lien or liens such that the security available to pay the claim is really without value to the junior creditor. The general rule with respect to liens is “First in time, first in right.” More on Secured Debts.

Collection- Obtain payment or liquidation of a debt or claim, either by personal solicitation or legal proceedings.

Comparables- Similar properties used as yardsticks to determine the market value of a certain property.

Complaint- The original or initial pleading by which an action is commenced; a written statement of the essential facts constituting the offense charged. A paper filed in court and delivered to the party(ies) being sued, stating the plaintiff’s claims against the defendant

Condemnation- A judicial or administrative proceeding to exercise the power of eminent domain, through which a government agency takes private property for public use and compensates the owner.

Confirmation- The court order which makes the terms of the plan for repayment of debts in a Chapter 11, 12 or 13 binding. The terms of the confirmed plan replace the prepetition rights of the debtor and creditor.

Consumer Debt- Debts incurred by an individual for personal, family or household purposes. Taxes are not consumer debts; neither are business loans. The means test only applies to those with primarily consumer debt.

Contingent- Used to describe debts that are not fixed in right at the time, but are dependent on some other event happening to fix the liability.

Contingency- A specified condition that must be fulfilled before a contract becomes firm and binding.

Contract- An agreement between two or more persons that creates an obligation to do or not to do a particular thing.

Conventional Loan- A loan that requires no insurance or guarantees.

Conversion- Cases under the Code may be converted from one chapter to another chapter; for example, a Chapter 7 case may be converted to a case under Chapter 13 if the debtor is eligible for Chapter 13. Even though the chapter of the Code which governs it changes, it remains the same case as originally filed.

Conveyance- A written instrument that transfers title to or an interest in land from one party to another (i.e. a deed, an assignment, a bill of sale, etc.)

Costs- the statutory sum awarded to the successful party when a judgment is entered (Section 1901 all Court Acts)

Counteroffer- A response given to an offer.

Creditor- The person or organization to whom the debtor owes money or has some other form of legal obligation.

Credit report- A document from a credit bureau setting forth a credit rating and pertinent financial data concerning a person or a company and used by banks, merchants, suppliers and the like in evaluating a credit risk.

Creditor- One to whom money is owed.

Debt- A sum of money due by a certain and express agreement; a specified sum of money owing to one person from another, including not only obligation of debtor to pay but the right of the creditor to receive and enforce payment.

Debt Ratio- To compare the total monthly payments of all of the borrower’s debts (including the mortgage) with the gross monthly income of the borrower. It evaluates the borrower’s ability to pay mortgage. Also called Debt-to-Income ratio.

Debtor- An entity that owes a debt; one who owes a debt. The debtor is the entity ( person, partnership or corporation) who is liable for debts, and who can be the subject of a bankruptcy case.

Debtor in Possession- In a Chapter 11 case, the debtor usually remains in possession of its assets and assumes the duties of a trustee. The debtor in possession is a fiduciary for the creditors of the estate, and owes them the highest duty of care and loyalty.

Decree of Foreclosure- A court order to set out the outstanding amount on a delinquent mortgage in order to sell the property to pay the mortgagee.

Deed- A written instrument that, when executed and delivered, conveys title to or an interest in real estate.

Deed in lieu of foreclosure- A process whereby the owner, with the approval of the lender, deeds the property to the lender to avoid foreclosure. Lenders are generally reluctant to accept a “deed in lieu” unless the title is free and clear of any other encumbrances junior to theirs and the owners execute an estoppel affidavit acknowledging that they are acting volitionally, with informed consent.

Deed of Reconveyance- A instrument that releases and discharges a deed of trust, when the mortgage has been paid out.

Deed of Trust (Trust Deed)- A three party security instrument conveying the legal title to real property as security for the repayment of a loan. The owner is called the “trustor”. The neutral third party to whom the bare legal title is conveyed (and who is called on to liquidate the property if need be) is the “trustee”. The lender is the “beneficiary”. When the loan is paid off the trustee is directed by the beneficiary to issue a deed of reconveyance to the trustor, which extinguishes the trust deed lien.

Default- The failure to make payments in full, on time or at all or to live up to any other obligations placed on the borrower by the loan agreement.

Defeasance Clause- A clause used in leases and mortgages that cancels a specified right upon the occurrence of a certain condition, such as cancellation of a mortgage upon repayment of the mortgage loan.

Defendant- The person who defends against a claim asserted in a Court action.

Deficiency judgment- A judgment entered in a lawsuit when a property is sold for less than the amount of the loan.

Delinquency- A condition when the payment is being late but not yet in default.

Demand Letter- Also known as a Breach Letter or Notice of Intent to Foreclose. Notice to the borrower that he/she is in “breach” of the terms of the Note and advising of the right to “cure” the default.
Department of Housing and Urban Development (HUD)- A federal department that focuses on programs regarding housing and renewal of city communities.

Denial of discharge- Penalty for debtor misconduct with respect to the bankruptcy case or creditors as a whole. The grounds on which the debtor’s discharge may be denied are found in 11 U.S.C. 727. When the debtor’s discharge is denied, the debts that could have been discharged in that case cannot be discharged in any subsequent bankruptcy. The administration of the case, the liquidation of assets and the recovery of avoidable transfers, continues for the benefit of creditors. More on denial of discharge.

Department of Veterans Affairs (VA)- An independent federal agency which oversees programs for military veterans, including loan and mortgage programs. This agency allows most veterans to purchase a house without a down payment.

Disclosure Statement- Document disclosing the terms of a loan.

Discharge- The legal elimination of debt through a bankruptcy case. When a debt is discharged, it is no longer legally enforceable against the debtor, though any lien which secures the debt may survive the bankruptcy case.

Dischargeable- Debts that can be eliminated in bankruptcy. Certain debts are not dischargeable; that it, they may not be discharged through bankruptcy or may only be discharged through Chapter 13. Family support and criminal restitution are examples of debts which cannot be discharged. Debts incurred by fraud can only be discharged in Chapter 13. More on which debts can be discharged. Considerations in contesting discharge of a debt.

Dismissal- The termination of the case without either the entry of a discharge or a denial of discharge; after a case is dismissed, the debtor and the creditors have the same rights as they had before the bankruptcy case was commenced. Dismissal is the penalty for many essentially minor infractions of bankruptcy procedures under the 2005 amendments.

Domestic Support Obligation- Debts for alimony, maintenance or support owed to child, spouse or governmental entity that paid for the support of the child or spouse. A new term introduced by the bankruptcy amendments of ’05.

Due-on-Sale Clause- A clause in a mortgage which requires that the mortgage be paid out in full upon the sale of the property.

Due Diligence- Such a measure of prudence, activity, or assiduity, as is properly to be expected from a reasonable and prudent man under the particular circumstance.

Earnest Money Deposit- A deposit made by a purchaser of real estate used as a down payment as evidence of good faith.

Easement- A right of way allowing someone to cross over another’s property for certain purposes, such as power lines or water mains.

Encroachment- A fixture that illegally intrudes into or invades the property or encloses a portion of it, diminishing its width or area.

Encumbrance- Anything, such as a mortgage, tax, or judgment lien, an easement, a restriction on the use of the land or an outstanding dower right that may diminish the value or use and enjoyment of a property.

Equity- The surplus of value which may remain after existing liens are deducted from the property.

Equity Right of Redemption- The right to avoid foreclosure action by paying off the debts, interest, and fees that have accumulated on the property.

Escrow Account- A bank account generally held in the name of the depositor and an escrow agent which is returnable to the depositor or paid to a third person on the fulfillment of a condition.

Estate- The total assets a person has when he dies, including real property.

Estoppel Certificate- A certificate in which a borrower certifies the amount owed on a mortgage loan and the rate of interest.

Eviction- The act of depriving a person of the possession of land or rental property that he has held or leased.

Exempt- Property that is exempt is removed from the bankruptcy estate and is not available to pay the claims of creditors. The debtor selects the property to be exempted from the statutory lists of exemptions available under the law of his state. The debtor gets to keep exempt property for use in making a fresh start after bankruptcy. More on Exemptions.

Exemptions- Exemptions are the lists of the kinds and values of property that is legally beyond the reach of creditors or the bankruptcy trustee. The debtor in bankruptcy keeps the exempt property. What property may be exempted is determined by state and federal statutes, and varies from state to state. More on exemptions.

Fair Market Value- The amount at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts.

Fannie Mae- Its an official name of the Federal National Mortgage Association which is one of the largest agencies that buys mortgages from lenders and resells them as securities on the secondary mortgage market.

FHA- Stands for Federal Housing Administration. It’s a branch of H.U.D. It’s basic function is to direct housing in a way that Congress mandates by issuing mortgage insurance to institutional lenders on the loans they make. With such loan insurance, lenders are willing to lend with smaller down payments and at lower rates of interest.

FHA Loans- A loan program offering low-rate mortgages to buyers who are willing to make a down payment as small as 3 percent.

Fiduciary- One who is entrusted with duties on behalf of another. The law requires the highest level of good faith, loyalty and diligence of a fiduciary, higher than the common duty of care that we all owe one another. The debtor in possession in a Chapter 11 is a fiduciary for the creditors, owing loyalty to the creditors and not the shareholders of the debtor.

First Mortgage- A mortgage that is in first position and has priority as a lien over all other mortgages.

Foreclosure- A legal procedure whereby property used as security for a debt is sold to satisfy the debt in the event of default in payment of the mortgage note or default of other terms in the mortgage document. The foreclosure procedure brings the rights of all parties to a conclusion and passes the title in the mortgaged property to either the holder of the mortgage or a third party who may purchase the realty at the foreclosure sale, free of all encumbrances affecting the property subsequent to the mortgage.

Garnishment- A statutory proceeding whereby person’s property, money, credits in possession or under the control of, or owing by, another are applied to payment of the former’s debt to third person by proper statutory process against debtor and garnishee.

General, unsecured claim- Creditor’s claim without a priority for payment for which the creditor holds no security (or collateral). If the available funds in the estate extend to payment of unsecured claims, the claims are paid in proportion to the size of the claim relative to the total of claims in the class of unsecured claims.

Good Faith Estimate- Institutional lender estimates the costs a borrower will incur, including inspection fees and loan-processing charges.

Grace Period- A period of days during which a debtor may cure a delinquency without penalty (before triggering a late charge, a foreclosure or an acceleration of the balance due).

Grantee- The person to whom the title of the property is granted.

Grantor- The person (seller) who grants title to another person (buyer).

Habendum Clause- Meaning “to have and to hold” which defines the quantity of the estate that is transferred to the new owner of land.

Home Equity Line of Credit- A loan that is secured by the owners property which can be repaid and borrowed again at the owners convenience.

Home Equity Loan- Owners who borrow against the equity in their homes.

HUD 1 Statement- A form, usually given by a bank, that includes the costs of purchasing a home.

Hypothecate- When you use something as security and still retain possession of it.

Indemnify- Any losses and damages endured by another person that you are fully responsible for. To guarantee against any loss which another might suffer. In bankruptcy, it is used to describe the undertaking of one spouse in a divorce to assume certain debts of the marriage and to see that the other spouse is not forced to pay. Also called a “hold hamrless” clause.

Instrument- A legal written document.

Involuntary lien- A lien issued against a property without the owners approval.

Joint Ownership- When two or more parties own the same property.

Joint Venture- A project where two or more individuals take part in a business transaction to share the cost, risk, and reward.

Judgment- The final decision of the court resolving the dispute and determining the rights and obligations of the parties.

Judicial Foreclosure- A foreclosure process which is executed via a court action.
Junior lien- A lien that is subordinate or junior to a senior lien.

Land Contract- An agreement used to sell real property that transfers ownership of the property, but the title does not transfer until most or all of the purchase price is paid.

Landlord- He who, being the owner of an estate of land, or rental property, has leased it to another person.

Lease- An agreement involving payment of rent for possession of real estate for a specific period of time.

Lease Option- A lease that contains the right to purchase a property for a specific price during a given time frame.

Lender- He from whom a thing or money is borrowed.

Lien- A claim or charge on a property for payment of some debt, obligation or duty. An interest in real or personal property which secures a debt; the lien may be voluntary, such as a mortgage in real property, or involuntary, such as a judgment lien or tax lien.

Life Estate- An estate whose duration is limited to the life of the party holding it.

Liquidated- A debt that is for a known number of dollars is liquidated. An unliquidated debt is one where the debtor has liability, but the exact monetary measure of that liability is unknown. Tort claims are usually unliquidated until a trial fixes the amount of the liability of the tort feasor.

Lis pendens- A term meaning “legal action pending” that gives notice of an action or proceeding affecting the title of the property.

Loss Mitigation Department- A department which helps homeowners avoid foreclosure; the lender tries to help a borrower who has been unable to make loan payments and is in danger of defaulting on his or her loan

Lot Book Report- A title record report given by a title company which announces any encumbrances recorded against the property.

Marketable Title- A title with no claims or defects that could otherwise hinder a property being sold.

Means Test- Added to the Code in 2005, the means test is intented to screen out those filing Chapter 7 who are supposedly able to repay some part of their debts. The test is found in Official Form B22a. Debtors who fail the means test may convert their case to another chapter of bankruptcy. More about how the means test works.

Mechanic’s lien- A claim created by state statutes for the purpose of securing priority of payment of the price or value of work performed and materials furnished in erecting or repairing a building or other structure, and as such, attaches to the land as well as buildings and improvements erected thereon.

Meeting of creditors- The debtor must appear at a meeting with the trustee to be examined under oath about assets and liabilities. Creditors are invited but seldom attend. The meeting is sometimes called the 341 meeting, after the section of the Bankruptcy Code that requires it. More about “going to court”.

Mortgage- An interest in land created by a written instrument providing security for the performance of a duty or the payment of a debt.

Mortgagee- The entity, usually a bank or financial institution, who lends money to a borrower.

Mortgagor- The person who borrows the money from a lender to purchase a property.

Multiple Listings Service (MLS)- A listing of properties from local real estate agents that consist of all homes available in an area. For-Sale-by-Owner properties are not listed in this database.

NARCA- National Association of Retail Collection Attorneys.

Non-dischargeable- A debt that cannot be eliminated in bankruptcy. Non dischargeable debts remain legally enforceable despite the bankruptcy discharge. The Code’s list of non dischargeable debts is found at 11 U.S.C. 523. The scope of the discharge in Chapter 13 differs from the discharge in Chapter 7. Discharges compared.

Notice of Default (NOD)- A notice that is sent out by the lender when a mortgage payment is late in an attempt to cure or make the loan current.

Notice of Rescission- A legal document used when the defaulting party has cured or corrected the default

Notice of Sale- The notice of an impending foreclosure sale required by the state. It recites the legal description of the property being foreclosed upon and gives the time, date and place of the pending sale.

Offer to Purchase- A contract expressing of a person’s willingness to purchase a certain property on terms expressed in the offer.

Owner Financing (Seller Financing)- A creative method in real estate where the seller of a property agrees to finance all or some of the property. In a sense, the owner acts like a bank.

Perfection- When a secured creditor has taken the required steps to perfect his lien, the lien is senior to any liens that arise after perfection. A mortgage is perfected by recording it with the county recorder; a lien in personal property is perfected by filing a financing statement with the secretary of state. An unperfected lien is valid between the debtor and the secured creditor, but may be behind liens created later in time, but perfected earlier than the lien in question. An unperfected lien can be avoided by the trustee.

Personal property- Assets, such as cars, stock, furniture, etc., that is not real estate or affixed to real property.

Petition- The document that initiates a bankruptcy case. The filing of the petition constitutes an order for relief and institutes the automatic stay. Events are frequently described as “prepetition”, happening before the bankruptcy petition was filed, and “post petition”, after the bankruptcy was initiated.

Power of Attorney- A written document signed by the owner which authorizes someone else to act in behalf of the owner.

Power of Sale- A clause commonly inserted in mortgages and deeds of trust that are in default, giving the mortgagee (or trustee) the right and power to advertise and sell the mortgaged property at public auction to satisfy the debt.

Preference- A transfer to a creditor in payment of an existing debt made within certain time periods before the commencement of the case. Preferences may be recovered by the trustee for the benefit of all creditors of the estate. More on preferences.

Pre-Foreclosure- Term used to discuss delinquent properties before they go to the foreclosure auction.

Pre-petition- Claims or events arising before the commencement of the bankruptcy case, that is, before the filing of the bankruptcy petition. Generally only pre petition debts may be discharged in a bankruptcy proceeding.

Priority- The Bankruptcy Code establishes the order in which claims are paid from the bankruptcy estate. All claims in a higher priority must be paid in full before claims with a lower priority receive anything. All claims with the same priority share pro rata. Claims are paid in this order: 1) costs of administration 2) priority claims and 3) general unsecured claims. Secured claims are paid from the proceeds of liquidating the collateral which secured the claim.

Priority claims- Certain debts, such as unpaid wages, spousal or child support, and taxes are elevated in the payment hierarchy under the Code. Priority claims must be paid in full before general unsecured claims are paid. Priorities listed. Discussion of priority taxes.

Proof of claim- The form filed with the court establishing the creditor’s claim against the debtor.

Property of the estate- The property that is not exempt and belongs to the bankruptcy estate. Property of the estate is usually sold by the trustee and the claims of creditors paid from the proceeds. More on property of the estate.

Quit Title- An action at law to remove an adverse claim or cloud from the title of property.

Quit Claim Deed- A deed of conveyance that releases any title, interest, or claim, which the grantor may have in the premises.

Reaffirm- The debtor can chose to waive the discharge as to a debt that is reaffirmed. Generally, the parties to the reaffirmed debt have the same rights and liabilities that each had prior to the bankruptcy filing: the debtor is obligated to pay and the creditor can sue or repossess if the debtor doesn’t pay. More on reaffirmation and the alternatives.

Real Estate Owned (REO)- Property acquired back by the lender after it has gone to auction.

Recorder- A public official that is responsible for keeping all the records of real estate transactions.

Reinstatement- When an account goes into foreclosure it begins to asses attorney fees and costs along with the loan servicers fee assessed as part of their servicing costs. In order to bring the account out of foreclosure at any time a debtor may pay the delinquency plus all fees and costs in order to take the account out of foreclosure status.

Redemption Period- The time allotted to the mortgagor to reclaim his/her property after it has been sold at an auction. Not all states have a redemption period.

Relief from stay- A creditor can ask the judge to lift the automatic stay and permit some action against the debtor or the property of the estate. If the motion is granted, the moving party (but no one else) is free to take whatever action the court permits. Relief can be absolute, for example, permitting the creditor to foreclose on property, or limited, as for example, allowing the recordation of a notice of default. More on relief from stay.

Sales Contract- A contract to which the buyer and seller agree to terms of sale.

Schedules- The debtor must file the required lists of assets and liabilities to commence a bankruptcy case, collectively called the schedules.

Second Mortgage- A second loan placed upon a property in addition to an existing first loan.

Secured debt- A claim secured by a lien in the debtor’s property by reason of the debtor’s agreement or an involuntary lien such as a judgment or tax lien. The creditor’s claim may be divided into a secured claim, to the extent of the value of the collateral, and an unsecured claim equal to the remainder of the total debt. Generally a secured claim must be perfected under applicable state law to be treated as a secured claim in the bankruptcy. More at Is This Debt Secured?

Seller Financing- A creative method in real estate where the seller of a property agrees to finance all or some of the property. In a sense, the owner acts like a bank.

Sellers Market- When the market conditions are such that the sellers have the advantage and multiple offers are made.

Sheriff’s Sale- The sale of a property to satisfy a debt or judgment.

Short Sale- The sale of a property under or at market value that’s lower than the loan balance.

Simultaneous Closing- The term “simultaneous closing” refers to two closings occurring simultaneously, or at the same time. This is a creative technique used when traditional financing will not work.

Subject To- The transfer of rights to pay a debt from one party to another, with the original party remaining liable for the debt if the second party defaults.

Survey- The process by which a parcel of land is measured and its boundaries and contents set forth.

Tax Deed- A type of deed used to convey title after real property is sold at auction by public authority for non-payment of taxes.

Tax Lien- A lien on real estate in favor of a state or local government that may be foreclosed on for the non-payment of taxes.

Tenant- A person in possession of real property with the owner’s permission.

Tenant at sufferance- A person who after rightfully being in possession of a rented premises continues to live in that premises after his right has terminated.

Tenant at will- One who holds possession of premises with the owners permission.

Title- Evidence of ownership of land.

Title Company- Firms that examine properties to ensure that the title to a piece of property is clear and free of any encumbrances. They also issue title insurance.

Title Insurance- An insurance policy that provides protection for lenders and buyers against any losses caused by defects in the title.

Title Report- A report which sets out the current state of title to a property.

Title Search- A search within the public records to determine ownership and that there are no claims or liens against the property.

Torrens Title- A torrens title contains a listing of all legal instruments (mortgages, judgments, liens) that have been recorded on the property from its origin.

Trust Account- A special account used by a broker or escrow agent to safeguard funds for a buyer or seller.

Trust Deed- A three party security instrument conveying the legal title to real property as security for the repayment of a loan. The owner is called the “trustor”. The neutral third party to whom the bare legal title is conveyed (and who is called on to liquidate the property if need be) is the “trustee”. The lender is the “beneficiary”. When the loan is paid off the trustee is directed by the beneficiary to issue a deed of reconveyance to the trustor, which extinguishes the trust deed lien.

Trustee- A legally empowered person who holds or controls a piece of property for another person. The court appoints a trustee in every Chapter 7 and Chapter 13 case to review the debtor’s schedules and represent the interests of the creditors in the bankruptcy case. The role of the trustee is different under the different chapters.

Trustee’s Deed- A deed given to the successful high bidder after a foreclosure auction.

Trustee’s Sale- An auction where a trustee may sell a property that has defaulted in effort to pay the outstanding debt that is owed.

Uniform Commercial Code (UCC)- Uniform laws drafted by the National Conference of Commissioners on Uniform State Laws governing commercial transactions.

Undivided Interest- Ownership of real estate by joint tenants under the same title.

Unsecured- A claim or debt is unsecured if there is no collateral that is security for the debt. Most consumer debts are unsecured. See Is This Debt Secured?

Unsecured debt- Debt not secured by collateral.

Upset price- The opening bid amount that begins the auction bidding during a foreclosure sale.

VA Loans- A program that allows the purchase of a house without a down payment to most veterans.

Vacant- To make vacant or

Warranty Deed- Deed in which the grantor warrants good clear title.

Without Recourse- Giving the lender no right to seek payment or seize assets in the event of nonpayment from anyone other than the party specified in the debt contract.

Wraparound Mortgage- The financing technique in which the payment of the existing mortgage is continued by the seller and a new, higher interest loan, which is larger than the existing mortgage, is paid by the

Yield- The return on investment or the amount of profit stated as a percentage of the amount invested.

Zoning- Regulations that control the use of land within a jurisdiction.